Harassment: A Separate Claim?

In 2017, media attention focused on sexual harassment as victims reported harassment and assault as part of the #MeToo movement. Although many of the accounts focused on sexualized treatment, this treatment often occurred within a broader context of unequal treatment, such as pay inequality and the disproportionately low promotion rate of women into leadership positions. For decades, legal scholars have noted the interplay between broader work constructs and harassment. This Article argues that viewing harassment as a separate, standalone claim likely misinterprets Title VII and the Supreme Court\u27s jurisprudence surrounding harassment. Unfortunately, this error represents the dominant view among federal appellate and district courts and has profound consequences for the reach of harassment law. This Article argues that harassment is not, and never was, intended to be a separate claim under Title VII. It does so by showing that the history of discrimination law is plagued with procedural ambiguity. The Supreme Court has regularly used civil-procedure words like proof burden, and claim inartfully. This inexact use has resulted in decades of confusion. In several instances, the Supreme Court has stepped in to clear up the procedural confusion. When doing so, it often interprets federal discrimination law in ways that are procedurally distinct from the dominant paradigm existing at the time. This Article provides an overview of a number of instances in which the Supreme Court has done this. Harassment law is equally due for the same procedural clarification. Consistent with current Supreme Court jurisprudence, courts can and should clarify that harassment is not a stand-alone claim